F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 15 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SANFORD DANIEL ARMIJO,
Petitioner-Appellant,
v. No. 99-1132
(D.C. No. 97-Z-1211)
RICHARD MARR; ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Sanford Daniel Armijo appeals the district court’s order adopting
the recommendation by a magistrate judge that his petition for a writ of habeas
corpus be denied. Because petitioner has not made a substantial showing that he
was denied a constitutional right, we deny his application for a certificate of
appealability and dismiss the appeal.
Petitioner was convicted of one count of second degree murder and
sentenced to twenty-four years’ incarceration. His conviction was affirmed by the
Colorado Court of Appeals on October 5, 1989, and his petition for certiorari
review was denied by the Colorado Supreme Court on April 23, 1990. He then
filed a motion for post-conviction relief pursuant to Colorado Rule of Criminal
Procedure 35(c), which was denied. The denial was affirmed on December 14,
1995, and certiorari review was refused on July 23, 1996.
On June 11, 1997, 1
petitioner filed this habeas petition pursuant to
28 U.S.C. § 2254, raising four issues: (1) ineffective assistance of counsel;
(2) violation of his Fifth Amendment right against self incrimination; (3) denial
of due process by denying his motion for a new trial; and (4) denial of due
process by failing to require a unanimous jury verdict. The magistrate judge to
whom the case was assigned found that none of these issues had merit and
1
Because petitioner filed his habeas petition after April 24, 1996, the
provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) apply to his appeal. See Lindh v. Murphy , 521 U.S. 320, 336 (1997).
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recommended that the petition be denied. Petitioner’s objections to the
recommendation challenged only the resolution of his ineffective assistance of
counsel claim. The district court adopted the magistrate judge’s recommendation,
and this appeal followed.
We note initially that this habeas petition was timely under the one-year
limitation imposed by AEDPA. See 28 U.S.C. § 2244(d)(1) (Supp. 1999)
(requiring, in relevant part, that a habeas petition be filed within one year from
the date a prisoner’s conviction becomes final). Because petitioner’s conviction
became final before AEDPA’s April 24, 1996 enactment, under our case law he
had one year from that date to file his habeas petition. See Hoggro v. Boone ,
150 F.3d 1223, 1225-26 (10th Cir. 1998). This one-year period was tolled,
however, while his request for certiorari review of the denial of his
post-conviction motion was pending before the Colorado Supreme Court. See
28 U.S.C. § 2244(d)(2) (Supp. 1999) (tolling one-year period while application
for state post-conviction relief pending); Hoggro , 150 F.3d at 1226 (holding
tolling provision applies to one-year grace period). As petitioner’s request for
certiorari review was already pending on April 24, 1996, his one-year period
began to run when the Colorado Supreme Court denied his request on July 23,
1996. Therefore, the June 11, 1997 habeas petition was timely.
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As a prerequisite to appellate review, petitioner must obtain a certificate of
appealability by making a substantial showing that he was denied a constitutional
right. See 28 U.S.C. § 2253(c)(2) (Supp. 1999). Because he objected only to the
magistrate judge’s recommendation concerning his ineffective assistance of
counsel claim, petitioner’s entitlement to a certificate of appealability is limited
to that claim. Cf. Vega v. Suthers , No. 98-1024, 1999 WL 973608 at *4
(10th Cir. Oct. 26, 1999) (holding petitioner’s failure to object to issue in
magistrate’s report and recommendation waives appellate review of that issue).
Further, because this is a post-AEDPA case, our review of the state court’s
decision is extremely deferential. Pursuant to 28 U.S.C. § 2254(d), petitioner
cannot obtain federal habeas relief unless he shows that the state court’s
adjudication of his claim “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or “resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” Any factual determinations by the state courts
are presumed correct unless rebutted by clear and convincing evidence.
See § 2254(e)(1) (Supp. 1999).
In light of these standards, petitioner has not shown that the state court
erred in holding that even if counsel made errors due to her inexperience, there
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was no reasonable probability that such errors prejudiced the trial’s outcome.
Petitioner argues his attorney was inadequate because (1) she had never tried a
felony case; (2) a week before trial she had only interviewed one witness; (3) her
cross-examination was ineffective; (4) she permitted the admission of improper
evidence; and (5) she did not object to the prosecution’s closing statements.
Without providing any details regarding these alleged errors, petitioner argues
simply that prejudice should be presumed. These alleged errors are not of the
type for which prejudice is presumed, however. See Strickland v. Washington ,
466 U.S. 668, 692-93 (1984) (describing limited situations in which prejudice is
presumed and requiring proof of prejudice in all other cases); United States v.
Cronic , 466 U.S. 648, 658-62, 665 (1984) (describing when prejudice will be
presumed, and holding specifically that an attorney’s inexperience does not justify
a presumption of ineffectiveness).
Here, petitioner did not show that counsel failed to interview additional
witnesses in the week before trial, did not describe what she would have learned
had she interviewed such witnesses, did not explain what counsel failed to ask
during cross-examination, did not describe the allegedly inadmissible evidence,
and did not describe the prosecution’s closing statements. Without such
information, petitioner could not possibly establish prejudice to the outcome of
his trial. Because petitioner has not made a substantial showing that he was
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denied a constitutional right, we deny his application for a certificate of
appealability.
The appeal is DISMISSED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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